At last, a property rights victory!
By Henry Lamb
web posted August 9, 2004
Land owners across the nation can breathe a deep sigh of relief
because of a decision rendered by the Michigan State Supreme
Court July 30. The Court reversed a 1981 decision that has
allowed state and local governments to take the private property
of thousands of landowners, and then give, or sell it to other
private entities.
In 1981, the same court allowed the city of Detroit to condemn
an entire community known as "Poletown," so General Motors
could build a new factory. More than 1000 homes, and 600
businesses and churches were bulldozed, justified by the city's
argument that the jobs and tax revenue the new factory would
produce provided a sufficient "public benefit" to warrant the use
of government's eminent domain power.
Since that decision, tens of thousands of individual property
owners have been uprooted in every state, in the name of
"economic development." Often, the property taken by
government was sold to another private entity - often, at a profit
- redefining the constitutional term "public use" to mean whatever
the municipality believed to be "public benefit."
In case after case, the courts have upheld these eminent domain
cases, relying on the 1981 Poletown decision.
More than two decades later, the Michigan court corrected its
mistake, saying: "We overrule Poletown in order to vindicate our
constitution, protect the people's property rights and preserve
the legitimacy of the judicial branch as the expositor, not creator,
of fundamental law."
Since the ruling was based on the State Constitution, it cannot be
appealed to the U.S. Supreme Court. The victims of the 1981
decision are not affected by the reversal, but it will have
profound implications for all future eminent domain actions.
The Poletown reversal is undoubtedly causing gastronomical
distress in municipalities and economic development agencies
across the country that are, at this moment, processing hundreds
of eminent domain condemnations for "public benefit," rather
than for "public use."
In community after community, visioning councils are developing
comprehensive land use plans, enforceable largely by the
municipality's power of eminent domain. The Poletown reversal
must put a monkeywrench into these plans. No longer can a city
simply declare private property to be an obstacle to economic
development, as justification for condemnation.
If the public benefit from economic development is insufficient to
justify taking of private property by eminent domain, then
perhaps open space, critical habitat, and environmental
protection are also insufficient reasons to take private property.
The U.S. Constitution does not say "public benefit," it clearly
says "public use."
The Southwest Florida Water Management District is threatening
the use of eminent domain to take Jesse Hardy's land in their
Everglades Restoration Program. Is this program a "public
benefit," or a legitimate "public use," as intended by the Fifth
Amendment?
In community after community, eminent domain power has been
used to acquire private property that has then been sold, or given
to a private, not-for-profit entity for preservation. Is this public
use, or public benefit?
Every person whose land is threatened by any kind of
government action, should seize on this question and force the
government agency to prove that the proposed taking is, indeed,
a legitimate public use, rather than merely a public benefit.
Land use agencies, at every level of government, should take a
long hard look at the Poletown reversal, and re-evaluate the
criteria by which they enforce land use rules. Rules and
regulations that preclude land use by the owner are often justified
on the basis of public benefit. No longer can this justification be
raised without a challenge.
The Poletown reversal has restored some of the sanctity of
private property, so well-recognized and respected by our
nation's founders. It is high time the judicial system recognized
the value of private property rights, and recognition by other
government agencies is long overdue.
As welcome as the Poletown reversal may be, government has a
long way to go before regaining sufficient respect for private
property. Still, communities, states, and even the federal
government are using tax dollars to buy private property, not for
public use, but for what they describe as public benefit: open
space, watersheds, viewsheds, scenic areas, historic areas,
heritage areas, buffer zones, habitat, and the like.
Government should immediately stop further land acquisition
from private owners, and begin divesting its inventory to
maximize land holding in private hands. Government should own
no land beyond that required for the essential government
functions as set forth in the U.S. Constitution.
Perhaps the Poletown reversal is a good first step toward this
goal.
Henry Lamb is the executive vice president of the Environmental
Conservation Organization (ECO), and chairman of Sovereignty
International.
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